John Russell Webster, Cross-Appellants v. The City of Houston, Cross-Appellee

armed, from van and was shot immedi- BROWN, Before GOLDBERG and ately. story Whichever one prefers, when TATE, Judges. Circuit arrived, gun the ambulance rested in Ran- dy’s hand. BROWN, Judge: JOHN R. Circuit truth, came light which to after a paint frighten- dramas police Television and, long, Randy’s parents, agonizing bloody picture and often of life. The nightmare of involvement with the Houston suffering of innocent their fam- victims and Department (HPD), pleasant. Police is not rooms, ilies sub- nightly living invades our chase, given The taxi driver who had stand- ject only change viewer’s to freedom cab, ing near his and a local resident both the channel. In this we lack that case They presented saw events. a different freedom, episode this involves a true story. Dolan, driver, the taxi testified as story. changed; The names have not been follows: innocent, scene, and in the final far A: van spun After the and around came street, city from being protected, lay on a to a stop up the driver had his hands dying, police while Houston officers debat- this, know, just like you about head ed cover up whether to their misdeeds trying level he was come out placing a gun “throw down” at the victim’s of the van this time.... side. supports We find that the evidence the jury’s verdict favor of victim’s Q: you Randy put Did time see parents in 1983 claim up any to what was going resistance but, jury of Houston since the misun- on there? instructions, derstood its we remand for a No, A: sir. I did not. new trial as to alone. Q: you do gun And before the was fired Webster, Randy a 17-year old native of say Randy brought was somehow Shreveport, Louisiana, stole a van from a ground? . . . Dodge dealership on Freeway the Gulf A: screaming they He started after had Houston, Texas. Houston officer ground him on they because Danny spotted Mays gave the van and said, pulling were his hair.... He Olin, chase. Holloway Officers re- “O.K., I right. man. O.K. All have calls, sponding joined to his radioed in. A enough.” had about all And that’s driver, part, do his trying taxi he he said before was shot.... And tried to force the van off the road. Even- [police] I had had saw told I tually, Telephone near the intersection of everything, boy and even when Road Houston, Road in Hall southeast there, weap- was no laying there was Randy lost control of his It spun vehicle. no weap- beside him. There was out of facing control came to rest they on in when him pulled his hand direction he had come. cars over, I because was there. screeched halt nearby. Mays, to a Hollo- way up List, nearby, and Olin ran to the van and ordered who con- William G. lived Randy out. firmed this account. not deter officers from Tragedy did with his get out of the van boy saw considering practicalities. What do up, approximately,

hands not clear According to know, point you see about the “mess”? Officer raised to you standing his Holloway, “Tommy He still had to duck them raised.... [Olin] up van and he still had his walked talking Byrd there ... and get head weren’t, air, you we a throw hands in the so asked if needed me and boy got . The got said, know.... He out... T know.’ That down.... I don’t out, my officer blocked view police Tommy up Danny Mays and would be to being of him or front standing in front shooting and it is their Olin. It was their see, him, still boy, you but the could mess.” he police than the officer. So bigger was down”, in this starring A role “throw whatever, hit him or either kicked him or officers, weapon police which tragedy, is a know, boy but the went to the I don’t (or wounded) unarmed sus- having killed an seconds later I heard ground. And a few justify the pect, put at his side to can happened off.... This all gunshot go common, practice? was this shooting. How There was no time for within seconds. officers, trial, at made clear testifying struggling, you or know. any fighting was “common knowl- that a throw down counsel, Olin, questioning Officer Holloway: “I had several edge”. Officer verified this account. if I needed a throw officers tell me that Olin, Q: Randy the time was shot Mr. they where down that had one or knew head, pret- in the back of the he was continued, “I know that get could one.” He ty pinned ground, to the much and the maybe Department wasn’t he? say to that we trying the news media were this throw were the first ones that admitted Yes, yes. A: down, police part but that has been a Q: or Mr. you He wasn’t a threat long work before I came on the streets.” was he? Mays, Dillon concurred. “It would be Officer A: I I didn’t re- speak Mays. can’t brought up like when [instructors myself. a threat call him be Academy] sitting be at various Police would armed, Q: was he? He wasn’t instruction, it would be crime scenes for A: No... . you if ever shot casually mentioned that Q: pinned ground He was on the at the well, accidentally, you had best have anyone shot, wasn’t he? time he was something lay protect yourself.” down to the throw Byrd, provided who Officer A: Yes. down, explained, Q: head, He had his hands behind his Q: percent- what many How officers or didn’t he? age of officers either carried a throw A: I don’t recall where his hands were. in 1977 or had access to a down resistance, Q: offering any He wasn’t down? throw was he? say of them. A: would 75-80% A: Not to me.. . . Q: knowledge common on the Was that Olin, Q: happened Mr. whatever February back in of ’77? force no mind night, your there is doubt in A: Yes. being force that was used Q: It the Web- wasn’t unusual at all at excessive, you Mays and Mr. cor- that there were two offi- ster scene rect? cers that had a throw down? A: Correct. unusual, wasn’t no. A: officers, Ran- ground by Knocked Q: Pretty practice? much common was shot within dy gave no resistance and of the officers carried a old A: Most either weapon, 17-year no seconds. He had gun. knife or a officers. boy against several Webster, father, Randy’s prac- came to Houston accepted much an Q: pretty It was at every to find out the truth. Met turn there be a throw tice that would hostility, with evasion if not he became if given one situation any down at were convinced that cov- needed? right. ering up. He was any- set Right. A: Not that, just cover-up, while cir- it was The evidence as thing like cumstantial, Dolan, damning. is no less just yourself to cover situation driver, police headquarters taxi went to individual basis. shooting give a state- morning after argument, the Indeed, out at oral pointed A Lieutenant Eickenhorst inter- ment. everyone fact understood mere advised Police viewed him and later Chief wide- its “throw down” demonstrated term “disregard” Dolan’s account. Al- Bond to use. spread investigating photo- officers took though As Hollo- Why employ a throw down? scene, graphs of the no one bothered to say any- explained, nobody “I had had way Binford, study them. Officers Marriott and on or going about what thing definite was unpleasant assigned to the no doubt task of to be done to going what was anything and officers, their fellow inter- investigating added) Pro- (emphasis protect Mays. ...” preted their mission as one of vindication. officer, then, name of was the of an tection They autopsy report, never studied the was known that game. “I think that it of the bullet and plotted path which be down could got if in trouble throw you Randy ground was on the when proved that go It is not like we would obtained. ... tests, trace metal they shot. Nor did order time, it is thinking about it all the around studies, trigger pull or a examina- ballistic Holloway mind.” just your in the back investigation. parts tion —routine such would be the same “I think that added: any of the at least They did not interview protect mind ... thought any officer’s Pearland, police officers or 20 Houston somebody shooting from the officer converged on the scene Texas officers who counsel Questioning from was unarmed.” ex- shooting. after the For within minutes developed point: and Koontz saw Ran- ample, Garza Officers you your part- and Q: But the fact that gun. van. He had no dy’s body beside the burglar situa- ner had discussed Dillon, Estes, Bloodworth Byrd, Officers tion, your minds it was at least uninvolved in the shoot- and others —all kill- may that there be an accidental use of a throw down. —discussed be used? ing and a throw down could too, gun. no Randy knew had had They, of taxi report despite eyewitness Yet Yes, A: sir. Websters, Dolan, by the prodding driver com- might existed be That throw downs many officers undeniable fact that and the at that time knowledge, a fact of life mon ten”, according to —“probably more than officers, did officers for Houston gun in had been no Holloway there —knew replied in Dillon use them? Officer in fact hand, came to facts never Randy’s these the affirmative: looked the other light. The HPD at first case Q: least one other there So then, unpleas- view became way as that and prior Randy’s situation years two ant, sought to conceal the truth. actively was weapon throw down where a 42 filed suit under U.S.C. The Websters know? you used as far as Houston and six 1983 § Yes, A: sir. officers, seeking damages HPD former conceded, just “It Byrd And Officer District Court their son. The the death of happened It had before.” fact. common verdict, jury judgment upon entered directly superiors, “They don’t As for his from amounts awarding them substantial They happens.” know it condone. in actu- officers and $2548.73 the individual $200,000 dam- official did not believe the al The Websters appeals. Houston ages City. Mr. John from the night’s of that events. version Federalism, 1983 and I. 90 Harv.L.Rev. 1133 (1977). Sherman, sponsor Warned Senator challenges of the sufficiency Act, peo- an amendment to the “Let the evidence on the Websters’ 1983 claim. It § ple property in the southern un- States argues that it did not maintain a “custom derstand that if will not make the hue depriving citizens of their constitutional cry necessary steps put and take the right” to be free of excessive force in an down lawless violence in those their States arrest officers’ actions property will responsible, be holden and the did not amount to such excessive force. Globe, effect will be most wholesome.” begin We with some observations about 761, quoted Department in Monell v. 1 of Originally enacted § § 658, 667, Services, Social U.S. 1871, Rights post- Civil Act of part 2018, 2024, 611, (1978). 56 L.Ed.2d To rights legislation, Civil War civil then, remedial, legislation label the is an declares that proponents understatement. Its took dras- who, Every person color any widespread depriva- tic measures to combat ordinance, custom, statute, regulation, rights tions of and state-condoned violence. subjects, usage, Territory, State or original bill contained parts. four subjected, any or causes to be citizen of predecessor provid- Section of § person the United States or other within ed enforcing the means for constitutional jurisdiction deprivation thereof to the rights in federal court. Parts 2-4 aimed to any rights, privileges, or immunities violence, suppress allowing Klan the Presi- laws, secured Constitution dispatch dent to necessary militia where injured shall be liable to the party in an suspending right and the corpus to habeas law, at equity, action suit in or other App. in enumerated circumstances. Globe proper proceeding for redress. 335-36, Monell, quoted 666, in 436 U.S. at legislative history reveals Re- that the 2023, 98 at 56 L.Ed.2d at 620. In S.Ct. Congress sought protect construction short, the Act of gave strong 1871 a dose of rights wipe constitutional and to out Ku Congress’ diagnosis medicine to treat of a Klux Klan violence in the southern states. problem. severe in Congress The debates occasioned much Waxing emotion and rhetorical skill. elo- II. quent protect on the failure to individuals’ ended, After period Reconstruction rights, Representative constitutional Perry a result the Act “laid dormant as of restric- cried, “sheriffs, not; see, having eyes see construction,” judicial tive Developments, hear,

judges, having ears hear not. . . . supra, Supreme in until the Court Monroe presence gangs appa- In the of these all the 167, 473, Pape, v. 365 81 5 U.S. S.Ct. machinery government, ratus and civil of (1961), opened wide L.Ed.2d 492 the door to processes justice, away all the skulk as if liability. 1983 The Court held that state § government justice were crimes and officers’ acts that violate both the Constitu- Globe, Cong. feared detection.” Cong., 42d give tion and state law rise to a federal Sess., (1871) (remarks 1st Rep. 447 Per- independent cause of action state ry), in quoted Schnapper, Rights Civil Liti- remedies. While the Court did limit the gation Monell, After 79 Colum.L.Rev. 213 individuals, recovery right relying (1979). Representative Lowe confirmed upon legislative history for its conclu- nightmare, stating, this “while murder is Congress sion that had not intended to stalking abroad in while disguise, whippings liable, municipalities make the effect none- lynchings and banishments have been pronounced. theless was As Justice Powell citizens, visited on unoffending American up, history summed “few cases in the the local administrations have been found frequently Court have been cited more than inadequate or unwilling apply proper Monell, 704, Monroe.” 436 at 98 U.S. S.Ct. Globe, (remarks corrective.” Rep. 2043, (Powell, J., 374 at 56 L.Ed.2d at 644 con- Lowe), quoted Developments in curring). —Section

1225 findings incidents, Frankfurter, in as to these dissenting part Court Justice Monroe, holding “makes predicted that concluded that “there was no affirmative of federal constitutional extreme limits between the occurrence of the the. link various quotidian busi- power regulate a law to incidents of misconduct and the regis- every every policeman, ness of traffic adoption any plan policy by petition- or elections, inspector or every city trar of express showing their ers — authorization or otherwise — every clerk in investigator, every approval of such miscon- country.” 365 U.S. licensing bureau in 371, 604, duct.” 423 at 96 at 46 U.S. S.Ct. 513, at 535 242, 5 L.Ed.2d at 81 at C.I.O., Citing Hague L.Ed.2d at 569. v. 307 With J., dissenting part). (Frankfurter, 496, 954, (1939), L.Ed. U.S. 59 S.Ct. 83 1423 path accuracy he discerned foretelling held, effect, Rehnquist Justice that acts “open[ed] liability, path 1983 § misconduct, more, without did not range federalizing a vast floodgates by good city. state a claim 1983 § P. and tort law.” of state administrative Monell, supra, Supreme up- Court Wechsler, Mishkin, Bator, Shapiro, H. P. D. applecart, holding set the that Mon- § Courts and Hart Wechsler’s The Federal & legislative history roe had misread Supplement, System, the Federal Congress had intended to include local McCormack, also Federalism See governments among “persons” to whom 1988, (1974). Va.L.Rev. 1 Section “[Ljoeal governments, applied. like § made a further con- Supreme every ‘person’ by other Section 1983 in Adickes v. tribution to that floodtide S. statute, very may terms of the be sued for Co., 144, 90 S.Ct. H. Kress & 398 U.S. pursuant visited deprivations constitutional (1970). There Justice Har- 26 L.Ed.2d 142 though governmental ‘custom’ even such lan, usage” “custom or lan- interpreting the approval a custom has not received formal proof of a guage of intimated § through body’s making official decision segregating cus- state-enforced custom of 690-91, channels.” 436 98 S.Ct. at U.S. might if it public eating places, tomers at 2036, 56 L.Ed.2d at 635. While a court to refuse to encouraged have the store under a theo- impose liability could not such patron, ground serve a black could ry respondeat superior, Justice Brennan legis- background liability. Against govern- “when execution of a surmised that concluded, he “we think history, lative custom, by policy or whether made ment’s state,’ usage, ‘custom or clear that a [a] whose edicts or its lawmakers or those purposes of 1983 must have force for § represent official may fairly acts be said to persistent practices of law virtue of the govern- injury inflicts the ... policy, 167, at 90 of state officials.” 398 U.S. S.Ct. entity responsible under ment as an 1613, interpre- at 159. “This at 26 L.Ed.2d 2037, 694, at 1983.” 436 at 98 S.Ct. U.S. § added, custom,” “recognizes tation of he added, “indeed, mu- at 638. He 56 L.Ed.2d may, practices that settled of state officials simply ‘arrange their af- nicipalities cannot withholding or bene- by imposing sanctions can assumption they vio- fairs’ on an fits, into private predilections transform indefinitely. .. .” rights constitutional late no less than compulsory rules of behavior 2040, 700, 56 L.Ed.2d at 98 at 436 U.S. S.Ct. 398 U.S. at legislative pronouncements.” at 641. 168, 1614, at 160. at 26 L.Ed.2d 90 S.Ct. 362, Goode, 96 In 423 U.S. S.Ct. Rizzo v. III. 598, Supreme (1976), the 46 L.Ed.2d 561 on a Appeals deal While the Courts liability. 1983 throttled back on § claims, scope with 1983 daily basis § Pennsylvania Philadelphia, citizens of Black search in vain broad that we liability so against May- brought suit under 1983 § question dispositive a answer for officials, charging that miscon- or and other to throw the evidence as before us: does police specific duct incidents of brutali- custom,” Mo- “policy establish a or rights. downs ty violated their constitutional nell, supra, purposes? factual 1983 upholding While the District Court’s § 1226 Mailet, (2d recently We have considered v. 619 196 the extent Turpin

In F.2d Cir.), Turpin sub nom. v. West city’s liability. Berry cert. denied of a v. McLe 1983 § 1016, 577, Haven, 101 66 more, 1982) 449 U.S. S.Ct. (5th (collecting 670 30 Cir. F.2d Circuit, (1980), the Second L.Ed.2d 475 cases), against 1983 claim involved § evidence insufficient finding the while who, Mississippi overreacting chief claim, delivered itself of support a 1983 § alleged protestations an traffic offender’s as to the 1983 some dicta reach § tactical innocence, him and him beat shot Monell, held, the Court did not liability. stomach, through arm and neck. The require policy authorizing uncon a written disciplinary town declined to take action stitutional action. against Despite appalling the chief. reject the outset We must therefore deeds, Judge nature of Chief McLemore’s suggestion that ‘official appellant’s immunity upheld Clark the town’s meaning of Monell can- policy' within 1983, revealed a since no evidence munici § or inferred from informal acts be pal policy authorizing encouraging or exces supervisory municipal omissions of offi- sive use an isolated of force. “Such in Indeed, holding that a munici- cials. does stance of misconduct not indi liable for pality can be held its ‘custom’ systematic, municipally- cate the kind less recognized Monell than formal Monell makes supported abuse to which ref can in instances municipal conduct some gross negli erence.” at 32. While 670 F.2d give liability under rise to might gence city create a part § 1983. claim, see, v. e.g., 1983 Herrera Valen § 619 at 200. F.2d (8th tine, 1981); 1224 Cir. 653 F.2d Haas, (2d F.2d 1242 Cir. v. 601 Owens 1246-47, Owens, Court found supra, 1979), County denied sub nom. of Nas cert. negli not been grossly the town had 980, 100 Owens, sau 444 U.S. v. training, gent hiring, disciplining or (1979), prisoner a federal L.Ed.2d post- reasoned that McLemore. County, Nassau New brought suit shooting discipline McLemore failure York officers and corrections under § encouraged him in could not have his earlier beating prison from a severe officials. unconstitutional actions. acknowledged that Riz Second Circuit These sketch in the outlines of a cases zo, supra, would bar action where § leave the details in a mist. claim but failed to its county merely supervise obligate Monell us look be- and Adickes County but held that Nassau employees formal, yond procedures written if the failure to supervise “could be liable actions, if HPD. reflect a Informal training proper program lack of a general pattern custom or official policy, so ‘gross as to reach the level of severe tacitly encourages po- conduct which even negligence’ or ‘deliberate indifference’ to force, may lice officers to use excessive well plaintiff’s the deprivation constitu satisfy amorphous standards the 1983. § F.2d at rights.” tional 1246. “The the pattern practice “The frequency premeditated brutal nature of the beat usage to custom or must alleged be a be case,” ing declared, in this the Court “and rise to a reasonable give sufficient to infer- the and rank of number officers involved employer and em- public ence that the its discovery warrant the allowance limited public ployees employees are aware that may so plaintiff attempt that the to sub engage impu- and do so with practice the stantiate a claim of ‘deliberate indifference’ nity.” Rights Schnapper, Litigation Civil the county prison to violence of “Custom, Monell, how- supra, After concluded, Judge Id. Smith officials.” ever, seemingly embrace more subtle could must be “while some causal link be made encouragement of constitu- or toleration failure to and the city’s tween the train generally, More rights, tional . . . single violation of constitutional declarations. tolerating tacitly encouraging repeated may such as this be suffi or brutal incident by one’s subordi- cient that link.” Id. constitutional violations suggest to cruits to the most senior officers —knew the same end as af- accomplish can nates Note, Municipal Li- commands.” about the use of throw downs and “looked firmative Meaning way”, jury 1983: the other ability reasonably Under Section could Custom", custom,” Monell, 79 Colum.L.Rev. “Policy or infer a or “policy supra, of (1979). leading commenta- 306-07 As illegal encouraged illegal actions which it, liability sets phrase tors Monell use of excessive force HPD officers. overtly covertly or high “if local officials cover-up supports The HPD’s also viola- encourage or constitutional authorize Eickenhorst, verdict. Lieutenant who in- officials.” Hart & tions subordinate Dolan,'urged the taxi terviewed driver Wechsler, 1981 at 240. See also Com- Supp. testimony. Why? ignore Police Chief to ment, Municipal Liability and Section provide no reason for his Eickenhorst could Superior, Respondeat the Doctrine of actions consistent with a officer’s (1979). U.Chi.L.Rev. 935 duty to look for and find the truth. The investigating officers who should have in- background, and after this Given vestigated to see transcript, preferred all leads no evil. having the entire trial studied Closing eyes ought their to facts which to supports jury’s we find that the record prompted vigorous inquiry, they, have too testimony the officers dem verdict. The provided support after-the-fact —for the the use of a throw down onstrates —if Why HPD’s unconstitutional actions. did throughout universal weapon well-nigh days Why in the no one come forward? did the HPD the HPD. From their earliest ignore unavoidable facts? The deliberate surreptitiously recruits Academy, Police decision to cover the ac- by employing themselves” unconstitutional “protect learn to exposing effectively tions instead of them protection may a throw down. have Such officers, encourages jury future unlawful acts. The influenced the even if not inten could well conclude that this studied cover- necessary force than tionally, greater to use unwillingness to find the up, force in border this deliberate unnecessary to resort to themselves, gave credence to the idea that a truth itself protecting line cases. In acceptable to the victim’s throw down was a tactic officers take the innocent away short, regretta- hierarchy. In it was of excessive right to be free constitutional official, policy at HPD. bly living part force. plight po- gath- sympathetic who We are The fact that some 20 officers licemen, danger- who do a public the use of a servants pondered ered at the scene the kind support job, often without provides down further ous and difficult throw citizenry from the support they All those officers knew of deserve jury’s finding. unarmed, none we cannot allow an offi- yet they protect. Yet Randy had been colleagues his parties protecting cer’s concern for came forward to clear the air. case, which, constitutional appar- the citizen’s Joyvies refer to the override Randy Webster had violated rights. a throw down ently, employed an officer law, pun- legitimately he could be weapon. proves That incident for which justify can the shoot- a first-time occur- ished. Yet no offense throw down was not 17-year old and widespread knowl- of an unarmed despite rence. Yet down, insignificant subsequent cover-up by a throw a not edge as to the use of taking Randy’s segment not to use a of the HPD. HPD had never told officers life, violated his constitutional the officer weapon. throw down Officers continued force, live, be free of excessive right tactic for one reason: employ this him, and to defend charges against away with it. The face the get knew could tacitly con- charges. In the testi- himself on those reasonably infer from jury could and then in doning of throw downs approval of the use mony that the HPD’s covert down, a throw covering up this instance of policemen in their encouraged throw downs clear, in that constitu- Since, implicated itself seems ev- the HPD illegal activities. new re- tional violation. Department in the eryone —from 1228 good The held that the faith of mu- Court

IV. entitle municipal- officials does not a nicipal verdict, jury’s we Having affirmed from 1983 lia- ity qualified immunity § damages. question up must take now Court, for the bility. Writing again once Monroe, municipality that a supra, held Brennan, history of relying upon the Justice purposes. 1983 The “person” not a for § materials, legislative assert- the times and on interpretation this sev- Court reaffirmed ed, County In Moor v. eral occasions. 693, 1785, immunity claimed the de- Alameda, 36 Where the 411 93 S.Ct. U.S. county well established at common (1973), it that a fendant was L.Ed.2d 596 held enacted, and 1983. the time 1983 was liable for under law at § was not § 507, Bruno, compatible 93 with In Kenosha v. 412 U.S. S.Ct. where its rationale 109, Act, 2223, (1973), it 2222, Rights 37 L.Ed.2d held we purposes Civil for equi- incorporate that 1983 did not authorize suit have construed the statute § municipalities. Alding- against table relief But there is no tradition immunity. 2413, Howard, 1, 49 er v. 427 96 S.Ct. municipal corporations, U.S. immunity (1976), party 276 held that a could L.Ed.2d history policy support nor a and neither join against a state law cause of action justify 1983 that would construction § with a 1983 claim coun- county a immunity City accorded the qualified § jurisdic- theory ty pendent officials on a of Independence. Wechsler, 1981 generally

tion. Hart & See 638, 1409, at. 63 445 at 100 S.Ct. U.S. Supp. at 238-39. L.Ed.2d at 685. Monell, did supra, Supreme Court year, Last the Court at last faced overruling Mon- Partially an about-face. permits an award question whether 1983 § roe, that Monroe Justice Brennan asserted against municipality. a punitive damages history and that legislative misread the Concerts, Inc., 453 City Newport v. Fact Congress had intended to include local 2748, 247, 616 69 L.Ed.2d U.S. 101 S.Ct. governments among “persons” to whom Rhode (1981). City Newport, Island like applied. “[Ljocal governments, 1983 § cancelled a license for a concert because very every ‘person’, other 1983 § city council feared that rock music would statute, for con- may terms of the be sued un- large might crowds who become draw pursuant deprivations stitutional visited promoter brought suit ruly. The concert governmental 436 U.S. at 690- ‘custom’.” 1983, alleging city’s ac- § 91, 2036, at 56 L.Ed.2d at 635. 98 S.Ct. rights. his First Amendment tions violated Justice did concede 1983 Brennan § compensatory both jury awarded did not extend as far as the law of master- city, punitive damages against which municipality servant in tort. “A cannot be Supreme squarely appealed. The respondeat held liable under 1983 on a § municipality that a is immune from held language can- superior theory. . .. [The] in a claim. Refer- punitive damages 1983 liability vicari- easily impose not be read to materials, ring to historical Justice Black- ously governing solely bodies on the ba- “by mun concluded that 1871 ... munici- employer-employ- sis of the existence of an private corporation, like was to be pality, relationship ee 436 with a tortfeasor.” U.S. person subject treated as a natural to suit 691-92, 2036, at at 56 L.Ed.2d at S.Ct. range activity, for a wide of tortious the unconstitutional action re- Where understanding did not extend to the custom, that, usage, sulted from a or acts exemplary damages.” award of though approval, even without official 259, 2756, 453 U.S. at S.Ct. however, might city, reflect courts,” pointed L.Ed.2d 627. “The he lie. liability would out, Missouri, Independence, readily Owen v. distinguished liability between compensate injuries U.S. 63 L.Ed.2d 673 inflicted a mu- (1980), closely on Monell’s nicipality’s agents, followed heels. officers and and vin-

1229 Congress the members of who drafted that damages appropriate punish- as a dictive those conduct of not ment for the bad faith Act did intend establish rule of Compensation and agents. same damages, officials we believe that it would by the shared obligation properly was an a far more serious violation than that take itself, punishment municipality whereas damages ground punitive confront we to the actual properly applied only against Houston. protected The thus wrongdoers. courts distinguish The seek to Fact Websters and public unjust punishment, from Concerts, deprivation which involved a of physical from undue municipalities rights, present contract from the case. constraints. infringed the facts and nature of While 2757, 263, at 69 453 U.S. at 101 S.Ct. differ, the rights constitutional involved do that acknowledging While L.Ed.2d at 629. Supreme opinion Court’s lends itself to but situation “imagine one an extreme could interpretation. that one dictates while directly responsi- taxpayers where the are subject compensato- municipality may be outrageous abuse of for an perpetrating ble damages for violation of constitutional ry n.29, at rights,” 453 U.S. 267 constitutional it not have to shoulder the rights, does 632 n.29, L.Ed.2d at 69 S.Ct. at punitive damages. of the tri- burden Since n.29, that pointed Blackman out Justice it could jury court instructed al municipali- on a “punitive damages imposed did, damages, which then assess com- fully are in a windfall to ty effect portion of the verdict. we must reverse likely accompa- and are pensated plaintiff, portion or a delete this of the ver- nied increase in taxes reduction We cannot rest, however, footing upon for public of services for the citizens and affirm dict justice sug- bill. Neither reason nor instructions and examination should be visited gests jury that such retribution answers we find that either jury’s or unknow- upon shoulders blameless judge’s in- ignored misunderstood 101 S.Ct. taxpayers.” U.S. jury The Court told the to con- structions. 69 L.Ed.2d at 632. (1) following damage: elements of sider pain, conscious compensation Randy’s for Webster, how Randy plight (2) suffering anguish; compen- and mental tragic, reprehensible, however does ever deprivation for of his constitutional sation outrageous conduct to rise to the level (3) compensation for the Websters rights; As we referred. which Justice Blackmun Randy’s expenses; and funeral for medical discussed, language supra, compan- (4) compensation for their loss which it derives and the Act of from society and for their mental ionship frightening vio in a time of were enacted damages (5) punitive lence, anguish; and the most basic constitution ensure city.1 If rights of citizens in southern states. al paid money, any, if 2. What sum of if now VERDICT

1. cash, you preponderance of do find from a preponderance you find from a 1. Do fairly reasonably the pensate would com- evidence are liable of the Defendants evidence that Webster, temporary John Russell as rights violating Randall the constitutional Allen administrator of the estate Randall Allen Webster? Webster, damages Al- sustained Randall the line next “we do” on Answer len Webster as a result of the occurrence you Defend- that such if find Defendant’s name question? (cid:127) not” the line “we do Answer ant liable. hJOÜ6¡~_ ANSWER:$ you if name find next to the Defendant’s is not liable. such Defendant money, any, paid What if if now sum of cash, you preponderance of do find from a Mays (a) D. UJ£. H. DO_ fairly reasonably com- the evidence would pensate Russell Webster and Billie Ruth John COE O Holloway W. K) (b) N. T" Allen for their for Randall Webster expenses in- Webster’s funeral medical Olin UJg (c) J. T. L^O_ ques- occurrence in curred a result tion? (d) of Hotscon _LO T2&_ versed and jury compensate The awarded remanded for a new trial on $2548.73 damages. Judge (now the Websters for funeral and medical ex- As Judge) Chief $200,000 out, penses punitive damages pointed and in Godbold As to the amount of Ran- against city. jury having plaintiff found that found “none” dy’s damages, jury and injured accident, from the 1975 the de- parents’ finding made the same for his loss consequences fendant was liable for the companionship society and and their injury thereof. . . . The fact of in De- anguish. cember, mental inju- 1975 and the nature of that established, ry having been there was no having jury, found a violation plain- substantial evidence that related could Randy’s rights, constitutional pain tiff’s to the earlier injury to the ignore finding calculating damages. in interrogatory same disc. Thus Randy’s rights Violation of constitutional awarding damages pain and suf- ‘$0’ was, minimum, at a worth nominal dam fering cannot be reconciled with in- [the] Piphus, v. ages. Carey See 435 U.S. terrogatory finding .. . that defendant (1978). 55 L.Ed.2d 252 The jury, negligently injury plaintiff. caused awarding damages claim, in no for this 608 F.2d at 623. irreparable committed error. We jury, awarding believe that Co., v. Manufacturing Lucas American punitive damages, thought it had covered (5th 1980), personal 630 F.2d 291 Cir. It, course, all bases. did not. it in Since suit, injury jury the hurricane-conscious disobeyed instructions, effect its we are plain- found the defendant liable for obliged to remand to the District Court for but, damages ignoring stipulation tiff’s new trial as to alone. $8502.30, expenses totaled returned a affirm We the verdict as to 1983liabili- verdict for We reversed and re- $3500. ty against city, reverse the verdict as to manded for a new Judge trial. As Kravitch punitive damages, and reverse and remand out, pointed jury “once the found de- for a damages. new trial on plaintiff’s injuries, fendant liable for plain- tiff was entitled compensation.... PART, AFFIRMED IN IN REVERSED verdict, however, was less than half [T]he PART AND REMANDED. stipulated out-of-pocket of Lucas’ losses and pain reflected no award for suffering. GOLDBERG, Judge, specially Circuit con- We find no for the evidentiary jury’s basis curring: only

award of 630 F.2d at 293. $3500.” It is grief with considerable that I write Associates, Inc., In Davis v. Becker specially & 608 to denying concur in the result (5th 1979), Lucas, F.2d 621 Cir. cited in punitive damages against City of Hous- supra, jury negli- found the defendant fully ton. concur in majority opinion gent but assessed physical issues, “$0” and/or on all other specially must con- mental pain suffering. The Court re- cur on the issue of damages be- amount, any, you 5. What if do assess , <2. S~" 'fQ» , 73_ $

ANSWER: punitive damages, the Defendants as considering separately? each Defendant You money, any, paid 4. What sum of if if now may consider an assessment of dam- cash, you preponderance do find from a ages against only you a Defendant if have an- fairly reasonably the evidence would com- swered Number 1 “We do” as to that Question pensate John Russell Webster and Billie Ruth you Defendant and if find that such Defendant companionship Webster for the loss of maliciously, wantonly, , oppressively. acted society of Randali Allen Webster and for their (a) D. H. Mays l, OOP CJciO, $ co anguish mental suffered as a result of the death Webster, resulting of Randall Allen all from the (b) N. W. Holloway $ NOtfG_ question? occurrence $_AJ c><CJ PAJEL- c geW) (c) J. T. Olin $ ANSWER: 2.0a, OOP,

(d) The GO City $ malicious, wilfull, quired findings or in- majority suggests cause the Concerts, Inc., exacting punitive tentional conduct before Fact 453 U.S. v. damages. in fact (1981), Newport If had created a 2748, L.Ed.2d 616 S.Ct. standard, outrageous new “an abuse of con- a damages against might punitive allow problem I would have no rights,” stitutional if the a section 1983 suit municipality in holding as law in a matter of that this case egregious. Would particularly facts were outrageous an abuse. is such could, clear so, then I with that it were for conscience, taxing urge judicial majority opinion I has misin- believe the damages. If there punitive Houston with footnote; terpreted rather than this creat- Newport around for gap were narrow exception, precludes an this footnote case, slip one would egregious an this any exception. appears in a It section through; thought at the that aghast I am opinion addressing possible a retribution rights more any violation of constitutional damages. justification punitive for Justice threatening one than the appalling, more argues against Blackmun that retribution actually exist. might that here occurred sense taxpayers except would make no presenting an Sadly, Newport as I view taxpayers in some rare case where the were damages. impenetrable punitive barrier to and that did not actually culpable,1 seem so, must, for now I Would were not that it likely enough merit consideration.2 The conscience, concur in with troubled human admits opinion bottom line of the of no this unfortunate result. a exceptions: municipality hold that “[W]e damages is immune under 42 punitive from foot- portion of a majority quotes at 2762.3 U.S.C. 1983.” S.Ct. admitting excep- Newport as an note from tion for cases: egregious Newport is clear and language absolute, and, is our in imagine accordingly, duty an so perhaps possible

29. It is disagreed taxpayers merely where the this case. If I with the extreme situation Newport, in I responsible perpetrating Supreme are Court’s rationale directly comment, an of constitutional would without further outrageous abuse concur fact, rights. Nothing presented agree that kind is and in with that rationale and Moreover, However, in case. such an occur- the result that case. after due this unlikely great respect sufficiently rence that we need deliberation and with for the is me, august I am of the anticipate not it here. institution above holding Newport sweeps belief 2760 n.29. Newport, 101 The ma- S.Ct. justi- would broadly more its rationale than jority plight Randy states “[t]he gravity of the constitu- fy. Because of the Webster, reprehensible, however however case, I present would tional violation in the tragic, does not rise level of outra- not duty express if I did my be derelict in geous conduct to which Justice Blackmun acquiescing views in result. my before referred .... believe that it would [W]e Supreme take a more serious violation than that agreement far I am in with regard punitive damages only in ground we confront in not Newport Opinion, result, regard in against Majority supra but also Houston.” rationale and to section 1983. legal approach Among the multitude of the Court’s overall at 1229. very method- conduct, re- me is that courts have What disturbs standards (emphasis original). possible On the alternative de- might 1. be to read footnote 29 as damages, allowing exception terrence where electorate of rationale affirmatively political unit votes in favor of “the deterrence rationale Court concluded that outrageous making punitive justify Even in conduct. situation §of does difficulty assessing there damages against municipalities.” would be some Id available damages minority of where a the electorate outrageous against voted conduct. Orleans, City New 687 F.2d v. Cf. Thomas 3. (5th 1982) (dicta) (reading New- 84 n.2 Cir. “Damages punitive purposes, awarded for port bar as absolute sensibly are not assessed therefore against municipalities). governmental entity itself.” 101 at 2760 ology unarmed, and rationale that dictate the did not shoot an result unresisting boy, contrary no, dictate result now. they merely defended themselves To this I shall follow the method- illustrate against an armed dangerous fleeing ology Newport point and at each indicate felon. how differences between crime, is, This heinous as it is not what case, the instant under the same form of ire, arouses my nor is it the basis for munic- analysis, lead to a different conclusion now. ipal liability. outrageous, What what First I factual shall summarize the differ- liable, city makes the what a perversion Next, ences between the cases. I shall cov- of public duty beyond almost belief is that legisla- er the background common law policemen the acted in accordance with tac- tive history Finally, of section 1983. I shall it Department policy. Police policies underlying imposition discuss the of evidence showed that 75-80% of Houston punitive damages. policemen guns carried throw-down that at least one hap- incident like this had I. OF NEWPORT AND WEB- FACTS pened before. The of heirarchy police the STER V. CITY OF HOUSTON department was aware of and indirectly My contrasting interest the facts of practice. outrageous condoned the Most is highlight these cases is not the solely to practice that the taught police was at the disparity gravity of constitutional viola- academy, passed on as oral tradition from Though disparity tugs tions. at the instructor to cadet. emotions, it is not a sufficient basis for Rather, protesting binding precedent. key point A about this case is that Hous- want to predicate establish the factual ton’s tacit policy originate did not in any arguments the My goal memo, follow. is to it cannot be traced to the any acts of show that the supporting salient facts the specific persons. shooting, Unlike the here; rationale in Newport present are not “promulgation” using fact, opposite supporting facts guns throw-down does not involve any dis- opposite present. result are crete actions policeman, discrete rather the collective acts of omission of

A. State Nature in the State of Tex- official, every policeman, every city every as: Webster v. City Houston person who knew practice. of the Webster, Randy a seventeen-year-old, stole a van in City of Houston. Three B. Rock and Roll Will Never Die: officers, guardians peace, gave Concerts, v. Newport Fact Inc. chase. At the high-speed conclusion of a Concerts, (“Fact”) Fact Inc. had entered chase, Randy lost control of the van and into a contract with the City Newport attempted to surrender police. He jazz hold a festival at a local concert site. had his up get hands and was trying to out mayor and council became alarmed van, unarmed,

of the stolen offering no Blood, when heard that Sweat and resistance, when police, to whom he perform.4 Tears would When Fact refused surrender, wished to forced him to the Blood, to remove Sweat and Tears from the ground and shot him in the back of the bill, city cancelled the contract on a police, head. The rightly nervous about the pretext and announced the consequences killing cancellation an unarmed and un- resisting widely over the teenager day prior who local media one trying was to sur- peaceably, planted beginning render of the concert. Fact weapon a obtain- near corpse. The purpose planting injunctive ed relief from a state court and gun “throw-down” was plausibility to add Unfortunately, show went on. due to subsequent to their planned perjury they publicity, adverse ticket sales were off. — mayor Blood, thought poor 4. The and council considered music was conducive to audience group, Sweat and Tears to be a rock and such behavior. gress was well aware of the law common on which the Su- the facts These were time, at the immunities that existed under no circum- preme Court held that section 1983 embodies them unless damages be assessed stances could congressional in- there is some evidence of municipality. against a Second, because there is tent otherwise. v. Lost Sales Compare and Contrast: C. legislative history for section virtually no Lives Lost itself, rejected looks to the the Act to discern Amendment to Sherman the two tenor of Though general section 1983. Congress’ attitudes towards different, is useful to it manifestly cases is differences the salient summarize Background A. General analysis. legal my subsequent purpose oper- activity legislative the relevant applying In Before the Court’s site, proprie- cases, paradigmatic help- a ating approach a concert intent to the two in this case the activity; tary municipal points at two broad of historical ful to look force, a activity operating general his- background. relevant First consider activity. governmental paradigmatic tory law immunities. of common was an ad challenged activity immunity pre- Initially general policy decision; widely followed sovereign here it is hoc citizen could sue the vailed —no were Newport there In a munic- municipal policy. sovereign, leave of the and save here wrongdoers; it the specifically identifiable was an instrument of ipal corporation per- or any person to impossible point to from liabili- sovereign thereby and immune policy. offending for the more responsible ty. municipal corporations sons became As wrong very immunity nature of Newport view of complex, unitary this very na- here the public, justification it whereas for extend- makes down. The broke conceal- towards wrong ap- ture of the tends did not ing immunity municipalities to consequence Finally, municipalities corpora- ment. acted like ply when sales; it is here wrong sovereign. was lost ticket of the rather than arms tions life. de- needlessly, tragically, liability lost was bifurcated municipal Thus municipal activity on whether the pending for New- background With this factual proprie- or a governmental nature was of a mind, I now case in port our current and the munici- nature. When tary, commercial Supreme an examination of turn to man- acting governmental in a pality was damages inquiry punitive into Court’s liability. ner, from all totally it immune was section 1983. municipality under against a acting pro- in a municipality was When two-phased. approach was The Court’s manner, puni- immune from it was prietary First, legislative investigated it whether compensatory damages but liable tive then-existing light of the history, viewed damages. allowed find- background, common law punitive background point is intent to allow legislative The second historical on those sec- against municipality Congress enacted in which the context behind policies facts. It then examined tion 1983. support they would 1983 to see if

section was Congress practice The with which I shall those facts. damages on systematic was the concerned especially applying two-phase approach, follow officials local law enforcement refusal of our Newport, then to first to phase each against laws state criminal enforce to present case. others Ku Klux Klan and members Republicans. blacks attacked who OF SEC- HISTORY II. LEGISLATIVE such permit or not sanction law did State TION discrimination, some cases and in Republicans were officials highest state approach underlying The Court’s discrimination, but opposed 1983 is in two who of section legislative history actually who employees state First, that Con- individual presumes parts. the Court carry original had to out administration of the intent of the Sherman Amend- pursued practice criminal law none- ment to make municipalities was liable for noted, Representative Perry theless. As losses caused mob violence. 101 S.Ct. at “Sheriffs, see, not; eyes having see During 2758-59. debate on this amend- hear, judges, having ears to hear not ment, it was made clear that liability presence gangs .... In the of these all only compensatory extended damages, the apparatus machinery of civil damages. The amendment government, processes justice, all the rejected. away government justice

skulk as if that a “doubt[ed] were crimes and feared detection.” The Congress having no intention of permitting Forty-second Congress regarded such a punitive awards municipalities in failure quin- to enforce state laws as the explicit context of the Sherman Amend- equal tessential protec- violation ment would have meant expose munici- tion clause. In some instances those state pal bodies to liability such novel sub silentio employees, especially depu- sheriffs and of the Act.” 101 S.Ct. at 2759. ties, actually joined the criminal activi- pointed The Court further out that Con- ties. The states themselves were criti- gress rejected the Sherman Amendment in cized, actively supporting not for the vio- part because of the place strain would formally sanctioning lence or the lack of fisc and the unfairness of enforcement, law “failing” forcing taxpayers innocent pay for the “neglecting” practice curb this of non- persons “deeds of over whom had nei- enforcement local judges and sheriffs. knowledge ther or control.” Id. The Court Schnapper, Rights Litigation Civil After saw “no reason to Congress’ believe that Monell, (1979) Colum.L.Rev. opposition to punishing taxpayers innocent (footnotes omitted). Thus, the primary con- bankrupting governments local would cern of section 1983 is lawless violence have applicable been less with regard to the against defenseless citizens in violation of novel specter their constitutional rights, aided and abet- municipalities.” Id. of damages against by ted the local authorities. Legislative History Applied C. as to Legislative History

B. Applied as This Case In this apply section will the same two- In applying two-part legislative histo- part legislative history analysis Newport ry analysis in Newport, the Court first to the facts of this case: first I will exam- sketched the history municipal brief im- ine the common law scheme of immunities just presented, munities 101 S.Ct. at 2756 & and then look for congressional evidence of Running n.19. a clearly concert hall is a intent to alter that scheme. proprietary activity, so the Court noted that the appropriate background common law The questionable activity in this case in- was liability one of for compensatory dam- running police department, volves a a clear- ages, but immunity punitive damages. from ly governmental function. As mentioned 101 S.Ct. at 2756. above, granted the common law scheme municipalities immunity total from liability

Given background, this common law governmental their activities. The congres- then looked for evidence of part inquiry sional second of the is whether intent to alter law Con- the common gress scheme showed intent to alter the com- municipal immunities. Because immunities, and, so, almost no mon law legislative scheme of if history on section 1983 exists, degree. itself history Department the Court examined the what As Monell v. Services, 658, of the Sherman theory Amendment on the Social 436 98 U.S. S.Ct. congressional (1978), clearly points 56 611 so attitudes towards issues L.Ed.2d out, in the suggest Sherman Amendment Congress with section 1983 intended to likely congressional policies intent in section 1983. municipalities make liable for vio- have, necessary steps put we in the down lawless vio- rights. Thus lating civil activities, clear con- lence in those their governmental property States will case existing responsible, be holden and the effect gressional intent to alter will Given be most wholesome. scheme of common law immunities. away strip intended to at Congress Globe, Cong. Cong., (1871), 42d 1st Sess. law municipal least of the common some Monell, quoted in at U.S. immunities, inquiry step the second of the then, Amendment, at 2024. The Sherman they intended now becomes whether altering municipal envisioned behavior immunities, in the context abolish ail such placing liability relying on the citizens and activities. municipal governmental encourage on them to alterations in behav- ior. because preliminary point,

As a Congress Amendment, course, did not intend to establishes that This was defeat- abrogate immunity from ed. That defeat should not be construed as capacity, mechanism, it municipality’s proprietary rejection in a of this deterrent to believe that might initially strange rejected seem however. The Amendment was liability liability, intend to allow for because of the novel source of Congress would liability traditionally more because of the fact of or function- punitive damages in the ing This is of the deterrent mechanism. See Mo- protected governmental capacity. nell, 669-83, however, when con- 436 U.S. at 98 S.Ct. 2024-32. strange thought, not a rejected Amendment was be- Sherman purposes of light sidered in of the core imposed duty cause it an affirmative governmental prevention section 1983— governments local to prevent violence aiding abetting misconduct caused parties. The portion third Act con- through to exercise the ma- violence failure taining what now section 1983 raised no justice. Because section 1983 chineries prevented problems, merely such because of official closely prevention tied to the governments violating local from the Con- misconduct, it should be and is more sensi- long stitution. federal courts were “So govern- in the dysfunction tive to Constitution, vindicating the Federal dysfunction than it is to in the mental area government providing ‘positive’ were reason, proprietary area. For this protect federal constitu- required action liter- policemen permitted which are rights question tional and no raised by perpetrat- murder ally get away with action.” enlisting ‘positive’ States investigation is subsequent a fraud in a Monell, 680-81, 98 S.Ct. at U.S. of section principles more offensive to the on munic- by imposing liability 2030-31. So of a con- municipal than is a breach 1983, Congress intended ipalities in section that results lost tract for a concert site deprivations to deter future of constitution- it is not at all Accordingly, ticket sales. economic burden on rights by placing al might eliminate Congress hard to believe who would cause the munici- taxpayers, govern- in the sensitive more immunities change ways. its evil pality activity. sphere mental determining immunity how much Con- IN III. PUBLIC POLICY SECTION I need to exam- gress abrogate, intended to Functions and Policy, Proprietary A. thought imposing liability Congress ine how Newport govern- eradicating would assist the evils Again, follow mental misconduct. two-phase The second half of the Court’s examine the Newport technique investigate methodology is to section 1983 Sherman, Amendment. Senator Sherman 1983 and see if policies behind section amendment, stat- his speaking on behalf of In New- policies suggest any result. those ed: investigating legisla- phase of port, the first law history showed that the common property in the south- tive people

Let the compensato- will allowed they if scheme of immunities ern understand States damages for punitive ry damages but no cry the hue and and take not make activities, governmental activities, their proprietary municipal and the and there was congressional Court found no evidence of congressional definite intent to alter that The intent to alter that scheme. common legislative law scheme. The histo- purpose then, inquiry policy, ry phase the second into Amendment shows that Sherman strong policy arguments Congress’ altering if are com- see there motivation for a result counter to Con- enough governmental to dictate mon law scheme was to deter rights gress’ deprivation intent. of citizens’ constitutional phase color of state law. The second two rationales for The Court considered inquiry into now is to determine neither punitive damages found that subjecting whether policies of section was harmonious with the damages promote in this case would Con- rationale was ret- potential 1983. The first gress’ goals. deterrent it made no sense ribution. The Court felt from a munici- punitive damages Arguments Against to exact 1. The Punitive purposes for because the pality Damages Newport retributive Do Not Here. Apply question actual economic burden would fall on —The whether dam- taxpayers, who were ages blameless. S.Ct. would deter misconduct was con- portion This of Newport at 2759-60.5 Newport, sidered in and there the Supreme quarrel valid under facts I have no help Court found would not deter mis- at all with the Court’s treatment of great retribu- conduct. The factual differences be- tion. tween and the case before me now, however, Newport’s arguments make puni- Court then considered whether against punitive damages inapplicable here. damages against municipality tive would primary making factual difference policy- deter “the malicious of their conduct Newport’s arguments inapplicable is that First, making officials.” 101 at 2760. wrongful involved the acts of indi- noted, punitive damages against officials, vidual whereas this case deals with municipality probably would not deter wrongful policy concealing police mur- Second, wrongdoing individuals. a deter- der, individual, not traceable to any single already present through rent effect is exist- outgrowth but rather the of the collective sanctions, reaction, public ^repri- such as police department. inaction of the entire Third, superiors, mand from and so on. directly levied offend- Thus, Newport argued while the Court in ing officials as effective serve a more deter- punitive damages against the munici- Finally, po- rent. Court observed pality would not deter individual miscon- devastating liability tential for financial duct, here we have group mis- municipalities, resulting in “a serious risk to Second, conduct. in Newport whereas integrity governmen- financial of these Court relied on superiors sanctions from tal entities.” 101 S.Ct. at 2760-61. Given deterrent, a sufficient in this case the bad this, all the Court concluded that the deter- policy actually exists due to collective support punitive rence rationale did not superiors. inaction of strange It seems damages. expect superiors those same to collective- ly sanction continuing themselves their B. The Core of Section Govern- lassitude, and so Newport’s alternative mental Functions and Third, sanction apply. rationale does not in present The second the phase inquiry Newport suggested in the Court that damages case has a different than it had in posture directly against assessed the offending offi- Newport because here results of the cial were the a better deterrent. But while phase first damages directly against were different. The common assessed an indi- law background municipalities might was that vidual deter misconduct, individual were for totally damages point immune at whom do we finger guilt from the of in exception. supra point supra, See 5. was at this the wrote footnote 1229. But see Court p. allowing majority an which the read as social costs and tragic apathy? the collective All social ease benefits. The cor- the individual officers who knew rectness of a decision is judged by whether the The nothing? but did instructors the social costs are less than the social bene- police academy the who allowed this arise, however, fits.7 Problems when the at the technique horrible to be inculcated decisionmaker will receive the benefits but time and Consti- very adherence to law the parties other bear the cost. In that case morality tution fundamental human the decisionmaker will decide to follow the taught? should have The chief? been bringing benefits, course regardless wheth- in their city snug The The council? citizens er that socially course is correct. The func- beds, young oblivious to the fact that men damages tion of is force the decisionmak- being down by “protectors”? were shot their er to consider the costs of his or her actions Finally, Newport the in that argued well promote as as benefits and socially punitive might for lost ticket sales damages decisionmaking.8 correct point of dam- deprive the citizens of other services be- ages, then, is to “internalize” costs to the cause financial burdens from increased decisionmaker.9 liability. case, But in this core section 1983 compensatory choice between exactly Congress that is what wanted. It is punitive damages should be made based on necessary damages that threatened whether other populace properly some so one will in- deprivation cause they nudged that will out of their bliss- produce be ternalize the social costs and social- ful “and the will most ignorance, effect be ly correct If parties decisions. all the bear- wholesome.”6 ing all costs enjoying all the bene- court, are compensatory fits before the then Damages 2. Punitive This Case damages properly will account all costs Would Promote Policies Section 1983. example, and benefits. For in the case of a —The factual between differences this case city worried about violence at a music con- and Newport only Newport’s make ar- cert, cancelling cost the concert is the guments against punitive damages inappli- cable, promoter economic affirmatively detriment suggest also that —lost damages in this case ticket sales. The punitive help cancelling would benefit of designed deter the only conduct section 1983 was If potential avoidance violence. prevent. turning specific awarded, Before compensatory damages are support factual differences that city can make the Com- correct decision. damages, I theo- generally must discuss city to pensatory force the inter- damages. ries behind deterrence decision, nalize the cost of its so bears the unsettling it is about Though a little to talk promoter, loss rather than the and can dry as setting economics in emotional Thus, right Newport make decision. one, Congress’ is what deterrence correctly the Court denied dam- rationale demands. ages. parties bearing all costs were All only compensatory before the court and damages, Under this economic view of key every datum is that has damages proper. action were Cost, (1960); damages causing Social 3 J.L. Econ. 1 6. The Court’s fear of loss of & Calabresi pressing Melamed, Rules, Liability Property services in less here. seems & Rules and thing category For one Cathedral, of cases would Inalienability: One View punitive damages merit seems small. rather (1972). Harv.L.Rev. 1089 another, infra See III.B.2. For if the deterrent actually works, mechanism there will be few assumption economically 8. The rational damages. assessing instances for decisionmaker, unjustified though often in the individuals, quite appropriate in case of seems analysis agnostic 7. This form of as to the policymaking. context distribution costs and benefits. Thus the argument Court’s rhetorical Calabresi, See, Accidents, e.g., The Cost of punitive damages unjustifiably 9. G. would enrich an (1970). already fully compensated inapplica- plaintiff 68-129 is Coase, See, e.g., of ble here. Problem for the however, city is such that not tickets but council’s If, the situation actions. court, case, however, produces come before the This social costs all of the costs will of damages gravest will be inade- the nature. compensatory trivializing Without then and punitive grevious the costs the injury to internalize most done Web- quate travesty This is much more ster a of the damages family, are needed. it makes most society ignore relevant decision values of to likely happen to when the fundamental our in the to policy, damage is a as the done them Houston’s promulgating one regarding case, policy. primal banding one a reason for rather than The most present event, Newport. together groups protection social is from in The full in discrete as very the the might not come before violence. When members of insti- policy costs of a protect to from violence for several reasons. tution created us courts it, the social fabric is torn. instead inflict might not be policy The full costs of a tear, however, we a because can This is but of a court because not all instances before of possibility all the uncontrol- understand known. ex- policy’s application the are For renegades. lable But the crime is when if a results in ten citizens ample, policy poli- in accordance the tacit concealed with $10, cost suffering only one institution, cy of the social fabric is that discovered, compensatory those instances is rags. ripped into tattered all damages would not internalize the costs. damages It threat only punitive can If a court tell that nine instances of that we be sure will be policymakers can application likely are to remain undiscov- it, cognizant grave ered, one of this social cost. when does come before the only punitive damages that by threat we punitive damages court should assess $90 policymakers dozing can their the the arouse from internalize costs of undiscovered policies as this. If ever eradicate such applications. precisely But this illustrates damages punitive there were a need for Newport one between of the differences decisionmaking, this is encourage sound it. very case. The and this nature It is time that the have a showdown courts wrong Newport public in was—it with “throw-down.” widely broadcast over the local media. The very wrong nature of here is one of CONCLUSION one case of only use concealment — throw-down guns penumbra has ever been In a case Newport, before within court, when Supreme rightly 75-80% of of section Court carrying guns, punitive damages were it is perceived throw-down were cases history hard avoid the that some called neither the nor inference coming feel, Sadly, are not before the courts.10 the statute. I issuing exceeding erred a holding in punitive Another instance in which dam- Today facts it. I live with before must ages needed are to internalize social costs is consequences holding of that and concur in if some social costs are known but are dif- damages, majority’s denial of widely through society. point fused This my supe- in obedience to the mandate from highlights key difference New- between riors. port case, the reason would be an injustice punitive damages majority opinion Newport award reads as ' injustice Newport greater holding outrageous that in an case city. total If damages may award them here. In be assessed way, read social from the incident are could be would up pro- finding a matter profits problem summed the lost have no city law tortious conduct of the moters some minor dissatisfaction that the bought outrageous those music lovers who would have Houston was in the extreme and fact, Majority Opinion, supra least one record revealed 1223. had other case not been before courts. See would therefore affirm the case on the basis city is liable punitive damages Roger Miller, Linda MILLER and

in an outrageous My difficulty case. Plaintiffs-Appellants, problem majority opinion with the is that I v. do not believe anything holds APARTMENTS, LTD., HARTWOOD et other than that there can never be an as- al., Defendants-Appellees. punitive damages against sessment of No. 81-4465 city. Summary Calendar. The very reason men and women come Appeals, United States Court of together in society is so that person, each Fifth Circuit. through sacrifice of some individual free- state, dom to the might better be able to Oct.

pursue personal goals, protected

state from violence is an others.

outrage agents state, when rather protecting violence,

than the citizenry from

violate right to life of a citizen. It is an

unspeakable however, perversion, when the state,

faceless minions of the the very ones

charged preventing with and investigating

murders, have a covert concealing

such a crime committed one of their

own, of perpetrating a fraud on court

that might investigate.

The role of society the courts in is a one,

delicate that of a physician body

politic. For a minor headache like

the aspirin of compensatory damages is a

sufficient remedy. But the existence of a

police policy of concealing police murder is

a cancer in the society, vitals of not unlike

the disease of the Klan in Congress 1870’s.

has prescribed deterrence

damages are our sharpest scalpel. How can

we be true to our oaths when denied the use

of the tools of our trade? Who will cure us

now?

Case Details

Case Name: John Russell Webster, Cross-Appellants v. The City of Houston, Cross-Appellee

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 28, 1982

Citation: 689 F.2d 1220

Docket Number: 81-2007

Court Abbreviation: 5th Cir.